No, they shouldn't

Steven Bergstein is a partner in the Allentown law firm Engel, Wiener & Bergstein, which specializes in civil litigation. He has represented both employers and employees in workplace issues.

Why do you think the idea of employers asking prospective employees for passwords to their personal social media accounts, such as Facebook, has become such a hot topic?

I think it has become a hot topic simply because of the popularity of Facebook. There are have been recent court decisions concerning the discovery of Facebook information in litigation. It is only natural that this will become a hot topic if employers start requesting the information. I think the other reason why this has become a hot topic is because of the privacy concerns. I do not believe an employer would have a right to come out to a prospective employee's home to investigate their living environment. Facebook postings are really not all that different as far as privacy is concerned.

Do you think it is legal for employers to ask job applicants for passwords to social media accounts?

It is hard to say it is legal or illegal only because the social media is such a new concept. I do believe, however, that, given the history of privacy concerns in our law, and given the other restrictions on what a prospective employer can ask, there are serious legal questions as to whether such a request is permissible.

Do laws need to be updated to balance the privacy concerns of individuals with the recruiting interests of employers in the age of social media? Where does the law get murky and how could it be strengthened or clarified?

As I indicated above, I think the law is a little bit murky only because the social media concept is so new. I think that re-establishing the right of privacy for such information would simply make clearer these restrictions. Another problem with social media is its inherent unreliability. Everything on someone's Facebook page is not necessarily posted by that person. To make hiring decisions based on what someone else may have posted is not only poor business practice but could smack of discrimination.

What advice would you give an employer that wants to ask for social media passwords of applicants?

I would advise an employer to go lightly on such a request. I cannot imagine an employer would ask for access to someone's home and personal life to make a hiring decision and I believe that is what social media is. I would advise an employer that there are serious potential ramifications of such a request.

What advice would you give a job applicant who has been asked by a prospective employer for his/her social media passwords?

First of all, I would tell a job applicant, just as I tell litigants, to be careful what they post on Facebook pages. I have already used Facebook postings against individuals, for example, in a custody fight. Anything you put out on the Internet is potentially public.

Having said that, I would tell a job applicant to be very wary of giving a social media password to someone just as I would tell them to be wary of giving a Social Security number. Given the economic times, this is not always an option for some people.

Drug screening of job applicants by employers has become routine, despite an initial backlash about privacy concerns. Do you think requiring job applicants to submit social media passwords is similar or different?

I think social media review is an even more serious invasion of privacy. At least in regard to drug screening, there is an argument that drug use could affect job performance. Whether someone has five friends or 500, went to the beach or to the mountains, or any of the other strange things that are posted on Facebook pages, is of no effect on job performance. I think that even the thought that an employer is entitled to such information goes against common sense and common decency.